Fight Against EPA Orders Heads to Supreme Court

January 9, 2012
Wall Street Journal
JESS BRAVIN

WASHINGTON—In a case watched closely by energy companies and manufacturers, the Supreme Court is set to consider Monday whether to blunt one of the government's chief tools for enforcing the Clean Water Act.

Based on "any information"—even a newspaper article or an anonymous tip—the Environmental Protection Agency can issue an administrative compliance order directing a property owner to stop discharging pollutants or restore a damaged wetland. The government says such directives, similar to stop-work orders by local zoning inspectors, allow it to respond rapidly to prevent environmental damage.

But business groups contend that the EPA acts as a judge and jury, forcing property owners either to comply, often at great expense, or risk penalties of up to $37,500 a day if the agency later obtains a court ruling to enforce its directive.

Challengers say that by issuing compliance orders without first giving property owners a chance to contest them in court, the EPA skirts the federal law and the Fifth Amendment guarantee of due process.

General Electric Co. is among the companies watching the case. Last year GE asked the Supreme Court to review a lower-court decision upholding the EPA's authority to issue compliance orders in a case involving a Hudson River cleanup.

The court turned down GE but weeks later agreed to hear an appeal raising a nearly identical issue from an Idaho couple, Mike and Chantell Sackett, over their plans to build a 2,400-square-foot vacation home on Priest Lake.

Mr. Sackett, 45 years old, says the 0.63-acre property was a gift from his wife, who bought it from a friend for $23,000. In May 2007, three days after workers started clearing the property, officials from the EPA and the Army Corps of Engineers showed up to ask if the Sacketts had a permit to fill in wetlands. The officials said they were acting on an anonymous tip. Nearly seven months later, the agency sent the couple a compliance order directing them to restore the property to its original condition.

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